1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss CIVIL SERVICE COMMISSION One Ashburton Place, Room 503 Boston, MA 02108 (617) 979-1900 ANDREW NARDONE, Appellant v. G1-18-209 G1-19-070 CITY OF PEABODY, Respondent Appearance for the Appellant: Leah Marie Barrault, Esq. Pyle Rome Ehrenber, P.C. 2 Liberty Square, 10 th Floor Boston, MA 02109 Appearance for the Respondent: Stephen C. Pfaff, Esq. Louison, Costello, Condon & Pfaff 101 Summer Street Boston, MA 02110 Commissioner: Cynthia Ittleman DECISION On October 30, 2018, the Appellant, Andrew Nardone (Appellant), pursuant to G.L. c. 31, s. 2(b) filed the instant appeal, G1-18-209, at the Civil Service Commission (Commission) contesting the decision of the City of Peabody Fire Department (City) to bypass him for appointment to the position of permanent, full-time firefighter. On or about March 22, 2019, pursuant to G.L. c. 31, s 2(b), the Appellant filed a separate but timely appeal, G1-09-070, with the Commission contesting the subsequent decision of the City of Peabody Fire Department to bypass him for the appointment to the position of permanent, reserve firefighter. A prehearing conference was held in the appeal docketed G1-18-209 on November 27, 2018 and in the appeal
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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss CIVIL SERVICE COMMISSION
One Ashburton Place, Room 503
Boston, MA 02108
(617) 979-1900
ANDREW NARDONE,
Appellant
v. G1-18-209
G1-19-070
CITY OF PEABODY,
Respondent
Appearance for the Appellant: Leah Marie Barrault, Esq.
Pyle Rome Ehrenber, P.C.
2 Liberty Square, 10th Floor
Boston, MA 02109
Appearance for the Respondent: Stephen C. Pfaff, Esq.
Louison, Costello, Condon & Pfaff
101 Summer Street
Boston, MA 02110
Commissioner: Cynthia Ittleman
DECISION
On October 30, 2018, the Appellant, Andrew Nardone (Appellant), pursuant to G.L. c. 31, s.
2(b) filed the instant appeal, G1-18-209, at the Civil Service Commission (Commission)
contesting the decision of the City of Peabody Fire Department (City) to bypass him for
appointment to the position of permanent, full-time firefighter. On or about March 22, 2019,
pursuant to G.L. c. 31, s 2(b), the Appellant filed a separate but timely appeal, G1-09-070, with
the Commission contesting the subsequent decision of the City of Peabody Fire Department to
bypass him for the appointment to the position of permanent, reserve firefighter. A prehearing
conference was held in the appeal docketed G1-18-209 on November 27, 2018 and in the appeal
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docketed G1-19-070 on April 23, 2018. The parties agreed, on or about June 28, 2019, to
consolidate the Appellant’s two (2) appeals.
I held a full regarding G1-18-209 on January 24, 2019.1 The witnesses were sequestered. The
hearing was digitally recorded, and the parties were given CDs from the hearing.2 The parties
submitted post-hearing briefs on March 14, 2019. The parties agreed that the second bypass
appeal related to the reserve firefighter position (G1-19-070) would proceed without a hearing.
The parties agreed to file briefs in the second bypass appeal. On September 13, 2019, the parties
submitted post-hearing briefs in the form of proposed decisions for G1-19-070. As indicated
herein, the appeal docketed G1-18-209 is allowed and the appeal docketed as G1-19-070 is
denied as moot.
FINDINGS OF FACT
Seven (7) exhibits were entered into evidence at the hearing of G1-18-209, and one (1)
additional exhibit, an Affidavit, was ordered produced by the Respondent at the hearing and was
filed post-hearing, totaling eight (8) exhibits. Specifically, the Respondent entered two (2)
exhibits plus one post-hearing Affidavit, while the remaining exhibits entered were five (5) joint
exhibits. The Appellant sought to enter a 2008 printout of a Facebook page/picture and the
comments posted online relative to that 2008 picture.3 The Commission denied the Appellant’s
request to admit this printout into evidence. Based on the documents submitted, the testimony of
the following witnesses:
1 The Standard Adjudicatory Rules of Practice and Procedure, 801 CMR ss. 1.00, et seq., apply to adjudications
before the Commission with Chapter 31 or any Commission rules taking precedence. 2 If there is a judicial appeal of this decision, the plaintiff in the judicial appeal would be obligated to supply the
court with a transcript of this hearing to the extent that he/she wishes to challenge the decision as unsupported by the
substantial evidence, arbitrary and capricious, or an abuse of discretion. In such cases, this CD should be used by the
plaintiff in the judicial appeal to transcribe the recording into a written transcript. 3 The Commission denied the Appellant’s request to admit the Facebook post into evidence on the basis that social
media posts and/or photographs can be interpreted in many different ways and can be misleading if taken out of
context.
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For the City of Peabody
• Beth Brennan O’Donnell, City of Peabody Director of Human Resources
• Chief Thomas Griffin, Peabody Police Department
• Chief Steven Pasdon, Peabody Fire Department
For Andrew Nardone
• Andrew Nardone, Appellant
and taking administrative notice of all matters filed in the case; pertinent statutes, regulations,
policies, stipulations and reasonable inferences from credible evidence; a preponderance of the
evidence establishes the following:
1. On or about April 16, 2016, the Appellant took and passed the civil service examination for
Permanent Firefighter and received a score of 97. (Stipulated Fact, Jt. Ex. 1)
2. On or about November 4, 2016, the state’s Human Resource Division (HRD) established a
list of eligible candidates for Peabody Permanent Firefighter. (Stipulated Fact, Jt. Ex. 1)
3. On April 10, 2018, HRD, at the request of the Peabody Fire Department (“PFD”), sent
Certification No. 05382 to the PFD. (Stipulated Fact, Jt. Ex. 1)
4. The Appellant was ranked eighth (8th) among those willing to accept employment.
(Stipulated Fact, Jt. Ex. 1)
5. Of the seven (7) candidates who were selected for appointment by the PFD, two (2) were
ranked below the Appellant. (Stipulated Fact, Jt. Ex. 1)
6. By letter dated December 7, 2018, the Mayor of Peabody, Edward Bettencourt, the
Appointing Authority, notified the Appellant that the City was bypassing him for
appointment. (Stipulated Fact, Jt. Ex. 2)
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7. The bypass letter regarding the Appellant stated:
“Bypass due to lengthy history of negative driving incidents as recent as 2015, including
multiple instances of speeding in the past five years. Your driving record includes a
motor vehicle accident in 2017, six separate incidents of speeding in the past ten years
(October 2015, May 2015, April 2014, November 2010, September 2010 July 2008) and
other moving violations during that time, as well as two additional speeding violations in
December 2006 and March 2007 in which you display a pattern of standards not
acceptable in performance of firefighter functions which involve and require substantial
regard for driving caution in public safety and emergency response. Bypass also due to
results of background investigation, specifically including concerns regarding the nature
of a “209A” Restraining Order issued against you in 2007 and other criminal charges
brought against you that same year. While these charges were ultimately dismissed or
continued without (sic) a required for a responsible public safety position in City
government. Moreover, prior civil restraining order was not disclosed on current
application packet materials. Questions exist regarding residency in past five years; no
Rowley, MA address was listed on current application materials or Verification of
Residency Form. However, letters submitted with current application packet dated 2013
and 2014 are addressed to applicant in Rowley, MA. Credit report from February 2016
application material does not indicate Peabody address, while Driver’s License issued in
2015 does. (Jt. Ex. 2, December 7, 2018 Bypass Letter)
8. Beth Brennan O’Donnell has worked as the Director of Human Resources for the City of
Peabody (“City”) for three (3) years. As part of her official duties, she is involved in the
process of hiring firefighters for the City. (Testimony of O’Donnell)
9. The process for appointing firefighters in Peabody is as follows: Candidates are chosen from
the certification and, if they are willing to accept the position, the candidate reports to
Peabody Human Resources and signs the Certification. The candidates are given a packet to
complete by a date certain and they return the documents to the Peabody Fire Chief’s Office.
The Fire Chief reviews the packets for completeness. (Testimony of O’Donnell and Pasdon)
10. The Fire Chief’s office sends all completed applications to the Chief of the Peabody Police to
conduct a background check, which includes checking various databases to determine a
candidate’s criminal and driver history. This is a paper investigation. No further work is done
with regards to the background investigation. The police department does not usually speak
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to references listed in a candidate’s file. An officer usually looks at the letters of references
the candidate has provided. The police department typically does not check with neighbor
references, past or current employer references, or long-term acquaintances for fire
department candidates. The City usually only checks these types of references for police
officer candidates. (Testimony of O’Donnell)
11. The Chief of Police sends the reports generated from the records check back to the Peabody
Director of Human Resources. Human Resources then flags those candidates who have a
criminal history and/or a driver history within the last ten (10) years. (Testimony of
O’Donnell)
12. The next step in the process is to provide the Mayor of Peabody all documents to review.
Following the review, the Mayor meets with the Fire Chief and Director of Human
Resources to identify those candidates whom the City would like to invite for an interview.
Those candidates who do not “pass the background check” do not get an interview.
(Testimony of O’Donnell)
13. Ms. O’Donnell, Chief Pasdon, and Mayor Bettencourt met sometime during the summer of
2018 to discuss the applications provided to the City as a result of Certification #05382. They
reviewed the criminal history and other database printouts that have been provided to them
by the police chief and, based upon these documents, they decide which candidates move
forward in the process and receive interviews. (Testimony of O’Donnell)
14. There is no written policy with regards to the interview process. The interview is conducted
by the Mayor, the Director of Human Resources and the Fire Chief. They do not have a list
of questions, but the interviewers do go over who will ask what. Generally, all candidates are
asked the same questions but some questions will be tailored towards the candidate’s specific
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background. There is no objective rating system utilized for the interview. Answers are not
ranked. The Mayor, the HR Director, and the Fire Chief discuss among themselves whether a
candidate will move forward and be given a conditional offer of employment. Once a
conditional offer is given, the candidates who qualify will undergo a physical, a drug screen,
a psychological evaluation, and a Physical Aptitude Test (PAT), in that order. (Testimony of
Beth Brennan O’Donnell)
Background of Appellant, Andrew Nardone
15. The Appellant, Andrew Nardone, was born in Salem and grew up in Lynn and Rowley,
Massachusetts. (Testimony of Appellant and Jt. Ex. 3)
16. The Appellant received a high school equivalency diploma from the Commonwealth of
Massachusetts in 2007. (Testimony of Appellant and Jt. Ex. 3)
17. The Appellant has earned college credit through two different associate degree programs but
has not finished either program as of the time of the hearing in this appeal. (Testimony of
Appellant and Jt. Ex. 3)
18. On or about December 19, 2013, the Appellant graduated from the Massachusetts
Firefighting Academy. (Testimony of Appellant and Jt. Ex. 3)
19. On or about April 7, 2014, the Appellant obtained a National EMS Certification at the
Emergency Medical Technician level. (Testimony of Appellant and Jt. Ex. 3)
20. The Appellant has obtained multiple certifications from the Massachusetts Fire Training
Council including Firefighter I/II; Incident Safety Officer; Public Safety Responses to
Bombing Incidents; High Voltage Emergency Awareness; HAZMAT/WMD/CT-Operations
Level Responder; NFPA Electric Vehicle Safety; Ethanol for First Responders; Introduction
to Incident Command System; Suicide Prevention and Intervention Training Program;
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FEMA/An Introduction to the National Incident Management System (NIMS). (Testimony of
Appellant and Jt. Ex. 3)
21. The Appellant worked as a paid on-call fire fighter for the Rowley Fire Department (RFD)
for five (5) years and, at the time of the hearing in this appeal, had worked as a paid, on-call,
per-diem fire fighter in Lynnfield for the past three (3) months. (Testimony of Appellant and
Jt. Ex. 3)
22. Since 2012, the Appellant has also owned a demolition business. The Appellant drives a lot
of vehicles for this job, including heavy trucks, such as box trucks, econovans, pickup trucks,
and dump trucks. He does not have a CDL license as these are non-CDL vehicles.
(Testimony of Appellant and Jt. Ex. 3)
23. Prior to 2012, the Appellant worked construction, commuting to towns such as Raynham,
Middleton, Saugus and Peabody. However, he drives more for his own company than he did
before. (Testimony of Appellant)
24. In an undated letter of recommendation authored by Mr. G, a Firefighter/EMT of the RFD,
Mr. G has known the Appellant for almost four years, since the Appellant joined the RFD in
2012. Mr. G has worked beside the Appellant and attended the Fire Academy with him. He
notes that the Appellant’s “competency and strong work ethic… and his eagerness to help co-
workers, including myself, and his willingness to learn from experienced superiors.” Mr. G
notes the Appellant seemed eager to take any opportunity to work at the station, including
participating in cleaning details and public service events. Mr. G believes Peabody “would
gain a dependable and enthusiastic individual who takes pride in his work. Andrew is highly
motivated and …has always been committed to preserving the standard of excellence
necessary for a high-stress job working for the public.” (Jt. Ex. 3)
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25. A second letter of recommendation was provided in the Appellant’s 2018 application packet
provided to the PFD. In an undated letter, Mr. D, a Firefighter/EMT with the RFD, indicates
that, in his time working with the Appellant, he has been a valuable asset and a team-player
who is capable of leading a team. Mr. D further opines that if a “situation at-hand requires
the efforts of an individual then Andrew Nardone will be that focused and target-oriented
individual that will get the job done.” (Jt. Ex. 3)
26. No one from the PFD, the City’s Human Resources Department, or the Mayor’s Office
contacted either Mr. D or Mr. G, the two firefighters who wrote the letters of
recommendations. (Testimony of O’Donnell and Pasdon)
27. Included within his application packet for the PFD, the Appellant listed Mr. D of the RFD,
Mr. M, Chief of the Lynn Fire Department, and Mr. F, the owner of a construction company
where the Appellant had worked, as the Appellant’s personal references. (Jt. Ex. 3)
28. No one from the PFD, the City of Peabody Human Resources Department, or the Peabody
Mayor’s Office contacted either Mr. D, Mr. M or Mr. F to check the Appellant’s references.
(Testimony of O’Donnell, Griffin and Pasdon)
Appellant’s Driving Record
29. Peabody Police Chief Griffin testified on behalf of the City. He has been the Chief of the
PPD for four and half (4.5) years and was previously in the Investigations Unit, rising to the
rank of Captain, with the Salem Police Department for twenty-seven (27) years prior to
working for Peabody. (Testimony of Griffin)
30. Chief Griffin assigned Officer Taryn Brotherton to conduct a background investigation of the
Appellant, including the acquisition of a driving history from the Massachusetts Registry of
Motor Vehicles (RMV). (Testimony of Griffin and Jt. Ex. 4)
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31. Chief Griffin assigned Officer Brotherton to check a number of other databases for
information regarding the Appellant’s criminal offender record, his interstate criminal record,
COP Link to check municipal police reports and an in-house database system to determine if
the Appellant had been involved with the PPD. (Testimony of Griffin and Jt. Ex. 4)
32. Chief Griffin personally reviewed the documents obtained by Officer Brotherton and the
Appellant’s driving history was of concern to him. The license query returned a number of
speeding violations. The Appellant was found responsible for some speeding violations and
not others. (Testimony of Griffin and Jt. Ex. 4)
33. The Appellant’s RMV driving record acquired by the PPD shows:
December 26, 2006 Speeding in Violation of Special Regulation, NR
March 7, 2007 Speeding in Violation of Special Regulation, R
March 2, 2007 Municipal Motor Vehicle Ordinance Violation , CW
July 14, 2008 Speeding in Violation of Special Regulation, R
September 23, 2010 Speeding, NR
Failure to Drive in Right Lane, NA
November 26, 2010 Speeding, R
April 17, 2014 Speeding, R
May 5, 2015 Speeding, NR
October 22, 2015 Speeding, R
(Respondent Ex. 1)
34. Chief Griffin indicated that the City will look at ten (10) years or so into the candidate’s
driving history. He indicated that even if the candidate is found Not Responsible, the City is
looking to see if there is a pattern of misconduct. The most relevant findings to the Chief
when looking at someone’s driver history are moving violations, especially speeding
violations, because the City firefighters are entrusted with driving a large vehicle when
responding to emergencies for the City. (Testimony of Griffin and Jt. Ex. 4)
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35. There is no written policy as to how candidate’s driver histories are reviewed. The police
chief does not draft a report for a fire candidate relative to his findings about a driver history.
The City considers the history “stale” beyond ten (10) years. (Testimony of O’Donnell)
36. Officer Brotherton also provided Chief Griffin with a printout from the in-house system for
the PPD, indicating whether or not the Appellant’s name has appeared in a records check.
This printout indicates that the Appellant was listed as the “Operator” in an “Accident” on
August 10, 2017. (Respondent Exhibit 1)
37. The City never spoke to the Appellant about this accident referred to in his records. Ms.
O’Donnell cannot tell if the Appellant was at fault in this accident or not. (Testimony of
O’Donnell)
38. Ms. O’Donnell was concerned with the Appellant’s driving history because there are six (6)
incidents of speeding in the past ten (10) years and an additional two (2) speeding incidents
on his record that fall beyond the ten (10) year lookback. The City looked at the 2006 and
2007 speeding incidents as part of a pattern of conduct. The City looks at the totality of the
record. (Testimony of O’Donnell)
39. Peabody Fire Chief Pasdon has been the Chief of the PFD for eighteen (18) years. Chief
Pasdon is familiar with Certification #05382 and is familiar with the hiring process
undertaken to fill the positions of permanent firefighter relative to that certification.
(Testimony of Pasdon)
40. Chief Pasdon also reviewed the Appellant’s driver history and he was “very much
concerned” with the Appellant’s driving record. Chief Pasdon concurred with Ms. O’Donnell
that there is no written policy for evaluating a candidate’s driver history but the past practice
is to look at a ten year window, and more specifically focussing on the past five (5) years.
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Firefighters for the City are expected to drive a 60-100,000 pound fire apparatus, which is
more difficult to handle and stop than a regular vehicle. (Testimony of Pasdon)
41. Neither Chief Pasdon, Ms. O’Donnell, nor Police Chief Griffin discussed the Appellant’s
driving history with him at any time during his candidacy, nor did they discuss with him his
criminal history or his involvement in a 2017 motor vehicle accident. They did not ascertain
whether the Appellant was at-fault in the 2017 motor vehicle accident. The City officials did
not write a report regarding their findings. (Testimony of Pasdon, O’Donnell and Griffin)
42. Police Chief Griffin did not speak to Mayor Edward Bettencourt, the Appointing Authority,
about the reports his department generated relative to the Appellant’s background nor did he
give his opinion about the content of those reports to the Mayor. (Testimony of Griffin)
43. The Appellant was rear-ended on Rt. 128 in the 2017 motor vehicle accident that appears in
his records. An insurance company report, produced by the Appellant and marked for
Identification (Id. A), indicates that the Appellant was found not at fault in that accident.
(Testimony of Appellant and Identification A)
44. The Appellant never spoke to either the Mayor, Fire Chief Pasdon, Police Chief Griffin,
Officer Brotherton, or Ms. O’Donnell about his driver history.4 (Testimony of Appellant)
Appellant’s Criminal History
45. The Appellant’s record indicates that a 209A civil restraining order was issued against him
beginning on January 11, 2007 and expired on September 10, 2007. (Respondent Ex. 1)
46. The Appellant’s criminal history indicates that he was charged with assault and battery with a
dangerous weapon and procuring alcohol for a minor in September 2007. The first case was
4 The 2017 motor vehicle accident does not appear as an entry in Joint Exhibit 4, the Appellant’s RMV Driver
History, rather, this entry appears in Respondent’s Exhibit 1, in a printout from the PPD’s in-house system which
identifies whether the Appellant’s name, address, or vehicle appears in any reports.
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dismissal by the court and the second was disposition of the Procuring Alcohol count was
continued without a finding (CWOF). (Respondent Ex. 1)
47. The Appellant did not mention in his application that he was the subject of a civil restraining
order in 2007. (Jt. Ex. 3 and Testimony of Griffin)
48. A 209A restraining order is a civil matter in the Commonwealth of Massachusetts, unless the
restraining order is violated, at which point it becomes a criminal violation. (Testimony of
Griffin)
49. The Appellant mistakenly considered the 209A restraining order which appears in his
criminal history to be a criminal matter and not a civil matter. The Appellant did not list this
matter in his application because there was nowhere to specifically note it. (Testimony of
Appellant)
50. On page 9 of the application, question 8A asks the Appellant if had “ever been convicted of a
criminal offense?” The Appellant marked the box to indicate “no”. On page 9, question 8D
asks if he had “ever been a plaintiff or a defendant in a civil court action?” The Appellant
did not include the 2007 restraining order in this section either because he mistakenly thought
the restraining order was a criminal matter (of which he was not convicted), not a civil
matter. (Jt. Ex. 3 and Testimony of Appellant)
51. There is no separate, specific question in the Appellant’s PFD application packet that asks
solely about prior restraining orders. (Jt. Ex. 3)
52. Neither Mayor Bettencourt, Chief Pasdon, Chief Griffin, Officer Brotherton, nor Ms.
O’Donnell ever spoke with the Appellant regarding his criminal history. The City of Peabody
did not obtain the police reports relative to the entries on the Appellant’s criminal history or
relative to the restraining order issued against the Appellant in 2007. The City did not
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question the Appellant about the restraining order. (Testimony of Griffin, Pasdon,
O’Donnell and Appellant)
Residency Preference
53. The Appellant signed a Verification of Residency Form, attesting that he maintained a
residence in Peabody for one full year prior to taking the exam from which certification
#05382 was created. The time frame for residency preference was from 2015-2016. (Jt. Ex.
3 and Testimony of O’Donnell)
54. The Verification of Residency Form requires candidates to
“list places(s) of residence for the past 24 months.” The Appellant wrote that he lives in
Peabody and has been a resident in the City since 2013. (Jt. Ex. 3)
55. As part of his application, the Appellant gave the City a letter from the Mass. Fire Training
Council regarding his Firefighter I/II certifications. The letter was dated December 18, 2013
and contained his address parents’ address in Rowley, MA. (Jt. Ex. 3 and Testimony of
Appellant)
56. As part of his application, the Appellant gave the City a letter from National Registry of
Emergency Medical Technicians regarding his EMT Certification. The letter was dated April
14, 2014 and contained his parents’ address in Rowley, MA. (Jt. Ex. 3 and Testimony of
Appellant)
57. These letters sent to his parents’ address were from agencies that he does not interact with on
a daily basis so he never bothered to correct his address to reflect the Peabody address. These
documents were part of the Appellant’s application with the PFD to show evidence of his
education/certifications, not to prove or disprove his residency in 2013 or 2014. (Testimony
of Appellant)
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58. The City never questioned the Appellant relative to the listing of his address as a Rowley
address in 2013 and 2014. (Testimony of Donnell and Appellant)
59. The Appellant’s credit report provided to the City with his application materials contains the
Appellant’s Peabody address at the pertinent point in time. (Jt. Ex. 3)
60. The City did not investigate the Appellant’s residency. The City did not send out
investigators to check on the Appellant’s residence nor did they speak to the Appellant
regarding any questions the City may have had about his residency. (Testimony of O’Donnell
and Appellant)
61. On occasion for other past candidates, the City has investigated their residency. (Testimony
of O’Donnell)
62. The Appellant gave the City the contact information of his landlords in Peabody but the City
never contacted them. (Testimony of Appellant and Jt. Ex. 3)
Relationship of the Mayor and Candidate - Mr. P
63. The City bypassed the Appellant and hired Mr. P.5 (Jt. Ex. 2)
64. Mr. P grew up in the City of Peabody and is a graduate of Peabody Veterans Memorial High
School. He has been employed by the PFD as a Signal Maintainer since March 2013. (Jt. Ex.
2)
65. Mr. P is “in the process of becoming EMT certified.” (Jt. Ex. 2)
66. Mr. P grew up with Mayor Bettencourt and HR Director O’Donnell. (Testimony of
O’Donnell)
67. Ms. O’Donnell and Mr. P went to high school together, although they do not currently “run
in the same circles.” (Testimony of O’Donnell)
5 For purposes of confidentiality, this candidate will be referred to by the first letter of his last name. Every
candidate will be referred to in this manner, hereafter.
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68. Mr. P and Mayor Bettencourt are friends and are contemporaries. They grew up in Peabody
and went to high school together. (Testimony of O’Donnell)
69. The Mayor did not recuse himself from involvement in this hiring process with respect to his
friend, Mr. P. (Respondent Exhibit 3, Affidavit of O’Donnell dated January 31, 2019 and
email exchange between this Commissioner and the Respondent’s counsel dated January 31,
2019)
70. Multiple members of the PPD and PFD with first-hand knowledge told the Appellant that
they joked that there is a “P Line” on the certification and that the Mayor would do anything
he needed to get down to his friend’s name (Mr. P) on the certification because Mr. P had not
taken the civil service examination again and would not be eligible on the next certification.
(Testimony of Appellant)
71. Chief Pasdon has supervised Mr. P during his employment with the City as a Signal
Maintainer. (Testimony of Pasdon)
72. Mayor Bettencourt, Ms. O’Donnell, and Chief Pasdon conducted the interviews of those
applicants selected from certification #05382, including Mr. P, and made final hiring
decisions, including the decision to hire Mr. P. (Testimony of O’Donnell and Pasdon)
73. Mr. P’s driver history was ascertained by the Peabody Police in the course of his records
check. Mr. P was cited for speeding on five (5) occasions between 1990 and 1995. He was
cited in 1998 for unsafe operation of a motor vehicle and failure to stop/yield. He has had no
speeding citations within the last ten (10) years and the only infraction within the past ten
(10) years on his driving history is an improper turn in 2010 and an unpaid parking ticket in
2013. (Testimony of O’Donnell and Jt. Ex. 5)
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74. Mr. P’s criminal history report states that he had two criminal charges: one in 1994 for
disorderly person and one in 2004 for compulsory insurance violation, both of which were
dismissed by the court. (Jt. Ex. 5)
75. Mr. P’s driver history was not of concern to Police Chief Griffin since Mr. P’s speeding
citations occurred well outside of the ten (10) year window and he was not concerned with
the one 2010 citation for an improper turn. Chief Griffin never contacted Mr. P to discuss his
driving record. He noted that, although Mr. P had some entries on his driver history in the
1990’s, he figured that perhaps it is due to maturity, a lifestyle change, or the choice to abide
by the regulations which caused Mr. P not to have any future speeding violations on his
record. (Testimony of Griffin)
76. Fire Chief Pasdon testified that there was nothing of concern in Mr. P’s driver history.
(Testimony of Pasdon)
Relationship with the Mayor and Candidate - Mr. O
77. The City bypassed the Appellant and hired Mr. O. (Jt. Ex. 2)
78. Mr. O grew up in the City of Peabody and is a graduate of Peabody Veterans Memorial High
School. (Jt. Ex. 2)
79. Mr. O lacks fire department experience. (Jt. Ex. 2)
80. Mr. O and Mayor Bettencourt are friends. (Affidavit of O’Donnell, dated January 31, 2019,
Respondent Exhibit 3, and email exchange between this Commissioner and the Respondent’s
Counsel dated January 31, 2019)
81. The Mayor did not recuse himself from involvement in this hiring process with respect to Mr.
O. (Affidavit of O’Donnell, dated January 31, 2019, Respondent Exhibit 3, and email
exchange between this Commissioner and the Respondent’s Counsel dated January 31, 2019)
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Applicable Law
The core mission of Massachusetts civil service law is to enforce “basic merit principles”
for “recruiting, selecting and advancing of employees on the basis of their relative ability,
knowledge and skills” and “assuring that all employees are protected against coercion for
political purposes, and are protected from arbitrary and capricious actions.” G.L.c.31, §1. See,
e.g., Massachusetts Ass'n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259,